Miller v. Insurance Co. of North America.

Morgan, 52 Barb. 217; affi'd, 6 Albany L. J. 173; Wood v. Hickok, 2 Wend. 501).

IV. Evidence of general usage insufficient to charge a party, if unknown to him (Southwestern Freight Co. v. Stanurd, 44 Mo. 71; Walsh v. Mississippi Co., 52 Id. 434; Sipperly v. Stewart, 50 Barb. 62; Duguid v. Edwards, Id. 288; Boardman v. Gaillard, 1 Hun, 217; Smith v. Tyler, 2 Sup'm. Ct. (T. & C.) 669).

N. A. Prentiss, for respondent.—I. Plaintiffs' exception to admission or exclusion of testimony was not well taken (Fountain v. Pettee, 38 N. Y. 186; Leffler v. Field, 33 How. Pr. 391).

II. The broker, in negotiating policies, is the agent and broker of the assured, and not of the insurer (2 Pars. Marit. L. 465-6; Mellen v. Hamilton Fire Ins. Co., 17 N. Y. 609-10, 616, 617).

GILBERT, J.-The finding of the referee, that there was an agreement to pay the commissions, rests upon the testimony of the plaintiff Miller. He stated that the conversation out of which the agreement arose, was had with one or the other of the defendant's agents, who were Mr. Catlin and Mr. Satterwaith. These agents were called as witnesses for the defense.

terwaith denied having made the agreement with Miller, and Catlin denied any agreement to pay commissions before the premiums were paid. Upon this evidence, the referee was justified in finding that the agreement as stated by Miller was made, namely, to pay a commission on all policies effected through the agency of the plaintiffs.

That agreement designated no time for the payment of the commissions. Parol evidence for the purpose of supplying this omission was therefore admissible. The defendants proved by Satterwaith, a custom among marine insurance brokers, that the commission is not due until the premium is paid, and by the plaintiff Scott, that the custom was to collect commissions

Robertson v. Bennett.

after the premiums were paid. Evidence of a custom of that kind is admissible. It is not repugnant to, or inconsistent with, the contract, nor does it add any new terms thereto, but is merely explanatory thereof. Where there is an established custom relating to the subject-matter of a contract, which is known to both the parties to it, it may well be presumed that they made the contract with reference to such custom, and we think the evidence in this case warranted that presumption (1 Greenl. Ev. § 294).

The contract itself was informal. One of the plaintiffs asked what commissions the defendant allowed. The answer was five per cent. No other particulars were mentioned. The inquiry relates to a course of business, and the answer ought to be taken with all the qualifications attending the same.

We think, also, that evidence of the custom was admissible under the general denial contained in the answer. When proved, it became one of the constituents of the contract, and the statement thereof in the complaint, therefore, varied from the one actually made. The provision of the Code (§ 149), which requires new matter to be specially pleaded, applies only to matters of defense arising after the contract was made (Boomer v. Koon, 6 Hun, 645-649).

The judgment should be affirmed.

Judgment affirmed.

BARNARD, J., and DYKMAN, J., present.

ROBERTSON v. BENNETT.

N. Y. Superior Court; Special Term, January, 1877.

AMENDMENT OF COURSE.-WITHDRAWING DEMURRER.

The statutory right to amend any pleading once, of course (Code of Pro. § 172), includes the right to withdraw a demurrer and serve an answer instead thereof.

Robertson v. Bennett.

The case of Hollister v. Livingston, 9 How. Pr. 140, overruled. Where plaintiff had noticed the demurrer for hearing, defendant was charged with costs of motion to compel him to receive the answer.

Motion that the plaintiff's attorney accept an amended answer after the service upon him of a demurrer to the complaint under section 172 of the Code.

Phoebe Robertson sued James Gordon Bennett for publication of an alleged libel. The defendant served the plaintiff with a demurrer to the complaint. Eleven days after the service the defendant served plaintiff with an answer withdrawing his demurrer. The plaintiff returned the answer claiming that he had noticed the case for argument on the demurrer.

John Townshend, for defendant, moved to compel plaintiff to accept the answer, on the ground that the demurrer is a pleading, and that he had the right to amend any time before the expiration of twenty days. Wm. W. Badger, opposed.

SPEIR, J.-[After stating above facts.]-I am not aware that the practice in such a case has been the subject of any adjudication, and none has been furnished me. The right to amend is absolute. This court decided (Mason v. Whitley, 4 Duer, 611; S. C., 1 Abb. Pr. 85), that a complaint might be amended, although the amendment amounted to a new and distinct cause of action, that can properly be united in the complaint. And it has been broadly held that the only limitation upon the right to amend or upon the nature of the amendments to be made is, that it shall not be done for the purpose of delay, nor under such circumstances as to prevent a trial at a term for which the cause is or may be noticed.' These objections are not alleged to exist. No delay has been occasioned by the amendment. In the case of Hollister v. Livingston, 9 How. Pr. 140, it was decided that the amendments under this section are restricted to the matters of the original pleadings. This decision has in later cases been over

Wallace v. Bennett.

ruled. And it has since been decided that the defendant may serve an amended answer, containing an entire new and different defense from that contained in the original answer.*

It seems to me, adopting the later interpretations of the statute, that the plaintiff may amend by adding a new count or cause of action, and that the defendant may amend his answer containing a new and different defense from that contained in the original answer. It must follow that the answer must be received as an amendment in the place of the demurrer. The defense in one case, is that the complaint contains no cause of action; and in the other, a denial of the allegations in the complaint. As the plaintiff put his case on the demurrer calendar, he must have costs of the motion. Motion granted.

The decision was acquiesced in.

WALLACE v. BENNETT.

N. Y. Superior Court; Special Term, January, 1877.

LIBEL.-PLEADING.

In libel, damages not specially alleged cannot be recovered. If the publication is not actionable per se, plaintiff must not only allege special damages, but prove that they were exclusively the consequence of the publication.

The code has not dispensed with the necessity of inducement and innuendoes, where necessary to point to a libelous meaning.

A notice in a newspaper advising applicants for board at a specified street and number to "inform themselves before locating there, as to table, attention, and characteristics of the proprietors," is not libelous on its face.

Matilda Wallace sued James Gordon Bennett, the

*McQueen v. Babcock, 3 Abb. Ct. App. Dec. 129.

So, too, the plaintiff, amending his complaint, may omit his original cause of action and substitute another not inappropriate to the summons. Brown v. Leigh, Ct. App. 12 Abb. Pr. N. S. 193.

Wallace v. Bennett.

proprietor of The New York Herald, for a libel, for publishing the following:

"6 East Thirty-fourth Street.-Boarding.-Applicants before locating here, inform yourselves as to table, attention, and characteristics of the proprietors."

The only matter of inducement stated in the complaint was that the plaintiff was engaged in keeping a boarding-house.

Defendant demurred, that the complaint did not state facts sufficient to constitute a cause of action.

John Townshend, in support of the demurrer.
W. S. Yard, opposed.

SPEIR, J.—It is possible, had the complaint contained proper inducements and innuendoes, the publication might have been made to affect the plaintiff injuriously. There are no such allegations, nor is there any averment that the plaintiff has sustained any special damages. No evidence can be received in an action for libel, of any loss or injury, which the plaintiff has sustained by the publication, unless it be specially stated in the complaint. And where the words are not actionable, per se, as in the present case, the plaintiff, in order to recover, must not only state, in his declaration, special damages as the result of the publication, but he must also prove that the special damage alleged was exclusively the consequence of the publication.

The plaintiff's counsel contends that his complaint contains, under the Code, enough for the court to discern an injurious meaning in the plain and natural purport of the publication itself, and some damage is to be presumed; and that no special damage need be averred. The Code of Procedure has dispensed with any statement of "extrinsic facts," to show the application to the plaintiff, but it has not dispensed with the necessity of inducement and innuendoes, where necessary to point the publication to a libelous meaning.

In this case, the publication is not defamatory on its